Wednesday, February 15, 2012

Antonin Scalia's war on religion

In two different decisions, the conservative Catholic (Supreme Court Justice Antonin) Scalia has sided with the court majority in finding that religious teachings can’t justify religious employers – or employees — failing to comply with labor law. In the 1990 Employment Division v. Smith decision, regarding an employer’s ability to fire a Native American employee who used peyote, despite the employee’s claim that using the drug was a religious rite, Scalia wrote:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

In an even more directly relevant 1982 decision holding that Amish employers must comply with Social Security and withholding taxes, though their faith bars participation in government support programs, Scalia wrote:

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

Posted at 03:51:35 PM

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Yeah, but this situation is, like, um, totally different. Those cases from 1990 and 1982 challenged laws that were not put into place by the Secret Muslim Socialist America Hater and Arch Enemy of the Free Exercise of All Religion (Except Islam) Baraka X Obama.

So if Scalia were ever to write an opinion striking down the mandate that even religiously-affiliated employers must provide coverage contraceptives, he'd be totally consistent.

This is what gets me so giddy when Conservatives reflexively oppose everything Obama does, and immediately follow it up with logical gymnastics to justify their position as being something other than reflexive opposition. You just know lurking right beneath the surface are glorious, shining examples of their championing the exact same principles to which they now are so vehemently opposed.

I suppose that's bound to happen when political belief systems are based on 2% fact, and 98% emotion.

I don't understand the point of this topic. Scalia is a judge and he's not responsible for making policy. He's only responsible for determining what the government CAN do - not what the government SHOULD do. If the state has the legal right to regulate something then how a judge feels about the merits of the issue are irrelevant.

Greg - as a practicing attorney, don't you agree that there's a distinct difference between the theoretical principle that judges only "interpret" the law and don't "make" it, and the actual practice that judges "make" the law all the time? From my days of practice, rare was the case that made it to the Supreme Court where stare decisis was cut-and-dried. Otherwise, the case would never get there. I always operated under the presumption that there is typically ample precedent on both sides of a Supreme Court case, and the judges basically choose which one they like better. Or which one is easier to justify. Citizen's United is a great example - the conservative majority ruled to change the law as written, and shoehorned all sorts of precedential arguments to support their conclusion.

As someone who claims to be an originalist, Scalia thinks he's carved out a nice little niche for himself as the most principled Justice. But as "original intent" is never such an easy thing to discern, especially in a document as vague as the Constitution, he can usually find a constitutional reason to support any decision he makes. And in that sense, he certainly is deciding what the government SHOULD do, only it's couched in terms of what it CAN do to make everyone feel better that our system actually has some consistency to it.

Hmmm, ... "yes and no" is my unsatisfying answer to your good question.

The "no" part is that there are a lot of cases out there where the answer should be simple either because there is no constitutional issue or the valid precedent or original intent is quite clear. For instance, you can't convince me that the Constitution says anything about abortion or marriage, or that it permits the line item veto. Citizens United was found to violate the First Amendment, which clearly requires a change in the law. Whether or not there was a First Amendment violation is up for debate of course but I think that there should be a pretty strong presumption in favor of free speech.

The "yes" part is that if you have a constitutional issue and it comes down to original intent then essentially you are calling balls and strikes based on how you see it. As you know, precedent can be overturned and Scalia has been all over John Roberts a few times for being too deferential to precedent.

I think that Scalia makes an honest attempt to apply the philosophy that he (and I) think is proper. Perhaps you disagree, which is totally fair. You might take a look at the attached link and scroll down to the discussion of Scalia's so-called "non-conservative positions" and see what you think.

Steve Chapman also provides an interesting counterpoint to the Republican and Catholic bishops continued protests.

==Cardinal Francis George of Chicago vowed to defy the law. Republicans generally seem eager to go wherever the bishops want to go.

That would be a mistake, both as policy and as politics. Religious freedom does not include the right to be free of any disagreeable laws. Obama's compromise pays due respect to the legitimate concerns of Catholic institutions. But now Republicans are moving the goal posts, supporting changes to let any employer with religious qualms -- not just church-affiliated entities -- opt out.

By prolonging the fight, the critics make it look like the issue is not religious liberty but sexual liberty.==

I think Greg makes a fair point -- what the Constitution allows and what's good policy are obviously two very different things. Also, the examples don't quite seem on point. The analogy to both cases would be something like the owner of a retail chain who happens to be Catholic objecting to providing health insurance coverage to his employees that includes contraception because it's against his beliefs. The issue here has to do with requiring certain actions from religious organizations -- not individuals who happen to be religious -- and such organizations can get special treatment under the free exercise clause. But even if we grant that some special treatment is appropriate, it's not clear to me that it should extend to organizations that, while *run* by a religious institution, do not in fact involve a specifically religious mission -- like a Catholic hospital. It seems thornier when it comes to schools, whose partial mission is religious education.

Greg - I completely agree we need a huge presumption in favor of free speech. I just have a problem with the concept of money as speech, and corporations as people. And your points about Scalia sticking to his guns even when it contradicts the prevailing conservative attitudes of the day are well taken. He's still generally thought of as a strongly conservative Justice. And I think he bases his decisions on his own particular brand of conservatism, which happens to be more thoughtful and intellectual than much of the current conservative platform. At least he sticks to his guns then, which is admirable. But the fact that he isn't in lockstep with the Dittoheads doesn't diminish the fact that his rulings are ALWAYS based on his hardcore conservative ideals, and those ideals would likely allow the new reg.

All that aside, thanks for passing along that conservapedia link. That thing is amazingly hilarious!

Now, I don't see any point in this post and its provocative headline other than to preemptively nail Scalia should he be toying with the idea of coming down on the pro-Catholic side in the contraception matter, and I must admit I don't know enough about the contraception controversy to assess whether there exists a valid analogy between it and the two Supreme Court cases cited.

Scalia, however, doesn't strike me as too reliable a fire-and-brimstone Catholic ideologue when it comes to constitutional interpretation.

For instance, in a 60 Minutes interview a few years ago, Scalia said quite clearly that the unborn are not "persons" under the Constitution and have hence no constitutional rights whatsoever ("You don't count pregnant women twice"), not necessarily a statement one would expect to hear from an arch-conservative Catholic of Scalia's intellect who certainly could have found a way to justify the opposite claim.

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